Feb 19, 2016

ABCA SUMMARY: Yee v Leduc (County)

Yee v Leduc (County), 2016 ABCA 40 (CanLII)

This is an application seeking permission to appeal a decision by the Leduc County Subdivision and Development Appeal Board to uphold a development permit for infilling and lot grading on a property. The property in question is adjacent to the residential property owned and resided on by the applicants, Darold and Minerva Yee.

Facts:

The adjacent property sits on higher elevation than the applicants’ property and it is zoned for country residential use under the Land Use Bylaw. The owners commenced infilling and grading work for the purposes of preparing their site for a future accessory building, but were advised that they required a permit to do. Mr. and Ms. Yee opposed granting the permit, noting concerns that infill and grading would alter the natural drainage patterns of groundwater on the land and put stress on their sump pump.

In response to the applicants' concerns, the County granted the development permit with a number of conditions, including that the adjacent property owners must create a drainage swale to alleviate any increased water flow on the applicants' lands. The applicants appealed the County’s decision to the Board, but the permit was upheld with similar conditions.

The applicants now seek permission to appeal the Boards decision, under section 688(3) of the Municipal Government Act, arguing that the Board failed to interpret or apply the Land Use Bylaw, failed to take into account relevant evidence, and failed to provide reasons for their decision.

Analysis:

The applicants argued that the Board failed to consider mandatory provisions within the Land Use Bylaw in regards to natural features, drainage, and topography, and that the consideration of these provisions was necessary to make findings of fact regarding the compatibility and suitability of the proposed development. The documents proposed in support of the application, however, made explicit reference to these provisions and the Board noted the same considerations in its imposed conditions. In granting the permit, therefore, there was an implicit finding that the proposed development was compatible and suitable to the lands based on the provisions contained in the bylaw.

In regards to the evidence provided, the Court reviewed the Board’s reasons, noting that the Board did weigh the evidence in front of it in order to make findings of fact. Absence a complete lack of evidence, these findings do not amount to an error of law. In fact, the Board was provided with evidence from the County’s Public Works and Engineering Department, which determined that the drainage swale would be sufficient to address any additional runoff. Compared with the applicants' unsupported contention claiming otherwise, the Board’s decision to rely on the evidence before it was reasonable.

And finally, on the topic of reasons, although reasons provided by a Board must be intelligible, they are not held to the standard of perfection. Here, the matter was not complex and did not require extensive explanation. When the Board’s reasons were read in the context of the entire hearing, its decision was simple to understand.

As none of the applicants' grounds had a reasonable chance of success, nor were they of sufficient importance to merit appeal, permission to appeal was declined.

This information is not intended to provide legal advice.